5.30 p.m.

Page 12, line 42, leave out "the participating country" and insert "a part of the United Kingdom"

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 57.

These amendments return to the issue of double jeopardy. Clause 21(6) allows the court not to give effect to the overseas freezing order if,

"the person whose conduct is in question were charged in the participating country with the offence to which the overseas freezing order relates, he would be entitled to be discharged under any rule of law in that country relating to previous acquittal or conviction".

That is, he would be able to rely on any rule against double jeopardy. The amendments would change the applicable rules on double jeopardy to those in the relevant part of the United Kingdom. This amendment probes whether there will be situations in which a person would be able to rely on the double jeopardy rule in the UK, but any rule of the overseas country. Thus, if the conduct had been committed in

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the UK, the courts would be giving effect to an order that might be contrary to the principles of double jeopardy that we apply.

Perhaps the noble and learned Lord would also clarify the reference to a "previous . . . conviction" in that subsection. Might that prevent the freezing of evidence relevant to criminal investigations where there had been a conviction overseas, even though the criminal investigation was ongoing, perhaps in relation to further offences or in respect of accomplices who were involved in the offence? I beg to move.

Lord Goldsmith: I say straight away that these amendments will be considered. As they stand, they would have the effect of limiting the double jeopardy approach to consideration of the law of the United Kingdom. Clause 21(6) has been drafted to prevent the requesting state seeking evidence that could not be used in its courts because of the double jeopardy rule and we should not want the United Kingdom to have to send evidence to France when there was no possibility of a trial ever taking place there. That would be an abuse of the system.

The amendment would prevent us from taking that proper approach, which we do not think wise and we cannot accept it as it is currently drafted. However, we agree that it should be possible to refuse cases in which prosecution would violate our own rules on double jeopardy and we will further consider bringing forward our own amendment to provide for refusal in cases in which prosecution would violate United Kingdom rules of double jeopardy. I hope that that is helpful.

Baroness Anelay of St Johns: That is most helpful. I am grateful to the noble and learned Lord for saying that he will consider the principle further; that is exactly what we were trying to get at. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 57 not moved.]

Lord Goodhart moved Amendment No. 58:

Page 13, line 3, at end insert

"( ) The third condition is that the freezing order is manifestly incompatible with the certificate which accompanies it."

The noble Lord said: Under Clause 20, when an overseas freezing order is sent to this country, it must be accompanied by a certificate giving the specified information. There are provisions about how it must be signed and it must include,

"a statement as to the accuracy of the information given in it".

Clause 21 states that the overseas freezing order must be complied with by a court. Subsection (5) states:

"The court may decide not to give effect to the overseas freezing order only if, in its opinion, one of the following conditions is met".

There follow two conditions, the first of which, in subsection (6), we have debatedit was the subject of Amendment No. 56. The second condition is that,

"giving effect to the . . . order would be incompatible with any of the Convention rights".

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Amendment No. 58, which was raised because of concerns from Justice, requires the order not to be made if it is caught by a third condition; that is,

"that the freezing order is manifestly incompatible with the certificate which accompanies it".

Article 7 of the draft framework decision sets out the grounds on which,

"competent judicial authority of the executing State",

may refuse to apply the freezing order. One of the conditions is that the certificate,

"is not produced, is incomplete or manifestly does not correspond to the freezing order".

That does not appear in the Bill. I appreciate that the reason for that may be that the Bill's draftsmen may have taken the view that it is implicit in Clauses 20 and 21 that a certificate that is manifestly incompatible with the freezing order cannot be a certificate within the meaning of Clause 20. I should appreciate that position. If that is not the case, it appears that there is a lacuna in the Bill. This is a probing amendment and I look forward to the Minister's response. I beg to move.

Lord Goldsmith: The basis of the amendment, as the noble Lord, Lord Goodhart, made clear, is the ground for refusal that is allowed for in Article 7(1)(a) of the framework decision.

As a matter of principle, the Government agree that execution should be refused if the order and the certificate are manifestly incompatible. We differ over how that is to be determined. That, in our view, is for the Secretary of State to consider under Clause 20 when the request comes through. I emphasise, as does the article in the framework decision, that the relevant condition is that the certificate is manifestly incompatible with the order; it must be clear on the face of it. I am not trying to define "manifest"; I am merely explaining what the word means in ordinary English. Officials in the Central Authority will be well placed to consider that issue. The Government's view is that in those circumstances, the item will not be sent on and therefore will not reach the court in the first place.

To put the matter briefly, one of the preliminary checks that the Secretary of State will carry out, under Clause 20, before referring the order to the court for enforcement, will be whether or not the order and the certificate are manifestly incompatible. It will be unnecessary for the court to make that decision and unnecessary therefore to place that requirement in the Bill as one of the requirements. I hope that the noble Lord is reassured that the Secretary of State sees that as one of the checks that has to be made by him and accepts that we do not believe it appropriate to agree to the amendment.

Lord Goodhart: I certainly accept the procedure that is envisagedthat the order should be looked at by the Secretary of State and should not be sent on to the court, and that it is therefore not necessary for the court to consider an incompatibility. I am still concerned that the Bill should state that before the Secretary of State sends a copy of the overseas freezing order to the court, he must satisfy himself that the

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certificate is one that is not incompatible with the terms of the overseas freezing order. I will consider that.

Lord Goldsmith: In considering that, I direct the noble Lord's attention to Clause 20(5), which requires the order to be,

"accompanied by a certificate which gives the specified information".

He may consider that if the certificate is incompatible with the order, it cannot be a certificate that contains the specified information; and if he agrees with that analysis, the Bill would contain something that the Secretary of State would have to consider.

The noble Baroness said: This amendment raises questions about PACE. It is intended to establish why only Section 21 of PACE, and not also Section 22, applies to seized evidence by virtue of Clause 22(4). After all, Section 21 of PACE is concerned with the right of the person from whom the evidence is seized to have access to it and to be able to copy it, so long as it would not prejudice police investigations. That will apply to evidence seized for the purposes of an overseas freezing order under the Bill's provisions.

It appears, however, that Section 22 of PACE will not apply. That lays down provisions on the retention of evidence. I refer primarily to Section 22(1), which requires that evidence seized shall be retained only,

"so long as is necessary in all the circumstances".

Will the noble and learned Lord explain why the Government decided that Section 22 of PACE would not apply? I beg to move.

Lord Goldsmith: The answer to the noble Baroness's question is that Section 21 of PACE is appropriate because it applies in relation to the seizure of evidence, but Section 22 does not appear to the Government to be relevant because that relates to the retention of evidence, and that is not what the clause is about.

It may help if I say more about Clause 22. It describes how the nominated court will give effect to the freezing order. The clause provides for the issue of a warrant by the nominated court. The warrant would authorise a constable to enter and search the specified premises to seize and retain specified property. It follows the procedures in PACE for giving effect to ordinary search warrants.

In line with PACE, it also provides that for England, Wales and Northern Ireland, if the evidence to be seized is of such a character that, if there were domestic

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proceedings, the appropriate procedure would be by way of a production order, the court should issue a production order.

The clause authorises the constable to remove any material produced to him by virtue of a production order and confirms that any such material is to be treated as seized material. That brings in the reference to Section 21 of PACE.

Clause 22(1)(b), as the noble Baroness notes and as I have just suggested, indicates that the warrant authorises the constable to "seize and retain" the evidence. I hope that that explanation is of assistance. I do not believe that there is anything at all sinister about this. The reference to Section 22 simply does not appear to the Government to be relevant in this context.

5.45 p.m.

Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his response. I beg leave to withdraw the amendment.